Date: 20011217
Docket: IMM-5105-00
Neutral Citation: 2001 FCT 1395
BETWEEN:
GNANESWARY SIVAGURUNATHAN
SAJINTHAN SIVAGURUNATHAN
THUVARAKA SIVAGURUNATHAN
NIJINTHAN SIVAGURUNATHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application pursuant to s. 82.1(1) of the Immigration Act ("Act"), for judicial review under the Federal Court Act of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board [the "Board"] dated August 25, 2000, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicants, Gnaneswary Sivagurunathan, and her three minor children with whom she makes this claim, Sajinthan Sivagurunathan age seventeen (17), Thuvaraka Sivagurunathan age fourteen (14) and Nijinthan Sivagurunathan age eleven (11), are all citizens of Sri Lanka. Their claim for Convention refugee status is based on their alleged membership in a particular social group, that of being Tamils from the north of Sri Lanka.
[3] The applicant was born in the north of Sri Lanka. She married a businessman from Erlalai, also in north Sri Lanka, in May 1981. They resided in the north of Sri Lanka operating a business there, until at least 1989.
[4] After 1989, the applicant's husband lived in Europe and in Canada. He was denied refugee status in 1991 by Switzerland and, according to the Swiss authorities, had disappeared by mid-August 1994. Later, he filed a refugee claim in Canada.
[5] The applicant alleges to have remained in the north of Sri Lanka until October 1998.
[6] During her time in the north of Sri Lanka, the applicant claims to have been compelled to pay extortionary fees and "taxes" to the Liberation Tigers of Tamil Eelam (LTTE). She also claims to have been subjected to harassment from the LTTE, who, by 1990, had taken control of the north. Her children were also under the threat of forcible recruitment while in the north.
ISSUE
[7] Did the Refugee Division err in basing its decision on an erroneous finding of fact, made in a perverse or capricious manner or without regard to the material before it?
ANALYSIS
Standard of Review
[8] The standard of review for questions of credibility was laid down in Boye v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1329 (F.C.T.D.), where it was stated:
The jurisprudence has established the standard of review in cases of this nature. To begin with, questions of credibility and weight of evidence are within the jurisdiction of the Refugee Division as the trier of facts in respect of Convention refugee claims. When a tribunal's impugned finding relates to the credibility of a witness, the court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, his demeanour, frankness, readiness to answer, coherence and consistency in oral testimony before it.
[9] In coming to credibility findings, the Board is entitled to consider contradictions or discrepancies in the evidence of a refugee claimant. This was illustrated in Rajaratnam v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 1271 (F.C.A.), where Stone J. held:
If it is apparent that a decision of the Board was based on the claimant's credibility, pure and simple, and this assessment was properly arrived at, no basis in law would exist for interference by this Court (Brar v. Minister of Employment and Immigration, Court File No. A-937-84, Judgment rendered May 29, 1986). Contradictions or discrepancies in the evidence of a refugee claimant is a well accepted basis for a finding of lack of credibility.
[10] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A.), the Court stated:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[11] The Board, however, must give proper reasons for its credibility findings. In Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228 (F.C.A.), Heald J.A., writing for the Federal Court of Appeal, stated:
In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment quoted supra is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise particulars of his inability to answer questions should have been made available.
THE APPLICANT'S CREDIBILITY
[12] The Board found generally the applicant to be not credible.
Inconsistencies between the applicant's testimony and her husband's PIF
[13] There were inconsistencies between the evidence sworn at the hearing and the applicant's and her husband's PIFs. Specifically at the hearing, the applicant testified that her husband left the north of Sri Lanka because of the LTTE wanted him to work for them and join their auxiliary forces. The Board found however that the applicant's PIF made no mention of these LTTE demands. It was pointed out to the applicant that her evidence was inconsistent with that of her husbands' and she reiterated that her evidence of her husband's problems was accurate. The Board was dissatisfied in regards to this issue.
The applicant's Sri Lankan passport
[14] There were inconsistencies between the applicant's evidence about obtaining a passport and the documentary evidence with respect to the same. The Board determined therefore that the passport adduced by the applicant was not genuine as the applicant had testified that she paid an agent to obtain a passport. However, the Danish Immigration Service and the Danish Refugee Council, when arriving in Sri Lanka to update their information, reported that no changes had been made to the procedure for obtaining a Sri Lankan passport meaning that a Sri Lankan passport must be applied for in person. Passports are not issued in the manner that the applicant had described. The Board therefore concluded at page 3 of its decision:
We find that the claimant's evidence is entirely inconsistent with the reliable, objective documentary evidence. The passport presented by the claimants is not a genuine Sri Lankan passport. We find the claimant untrustworthy.
[15] The applicant was unaware of the recent procedures for obtaining a passport in Sri Lanka. As she was unaware of this straightforward process, the Board was able to infer the applicant was not present in the north of Sri Lanka at the material time to their claims.
[16] The applicant's suggestion that the passport could have been obtained by bribery is pure speculation and is unsupported by the evidence and therefore should be rejected.
Absence of documentation from the north of Sri Lanka
[17] The Board was concerned that there was no evidence adduced to attest to the applicant's presence in the north of Sri Lanka after 1989. If the applicant had resided in north Sri Lanka as she had claimed, she would have been able to produce school records for the children, business records or other evidence to corroborate the nine (9) years that she alleges to have resided there. The Board wrote at pages 4 and 5 of its decision:
In our view, the claimant should reasonably be able to present documentation pertaining to the nine years after 1989 that the claimants were allegedly in Sri Lanka such as school documentation or records from the family business in Jaffna. The absence of a reasonable explanation for the lack of proper documentation may lead to a negative inference when assessing a claimant's credibility or when determining the substantive basis of the claim. We find the claimant's total lack of effort to obtain school records unreasonable and draw a negative inference.
[18] In determining the substantive basis of the claim, recent residence in the north of Sri Lanka is relevant. This is because the documentary evidence shows that the government of Sri Lanka generally respects the human rights of citizens that reside in areas not affected by the conflict. While the movement of Tamils is somewhat restricted, large numbers of Tamils live in Colombo, and there is no evidence to show that there are restrictions on staying in Colombo for Tamils returning from abroad. The Board was not satisfied that the applicant had recently resided in the north of Sri Lanka and so stated at page 6 of its decision:
We find that the claimants are not credible or trustworthy. They are not recent residents of the north of Sri Lanka. We accept that they were born in the north and spent some time there. After 1989, we have no idea where they might have been, however, we do find as a fact that wherever they have been, it is somewhere other than the north of Sri Lanka.
[19] The Board determined that the applicant did not have good grounds for fearing persecution in Sri Lanka. Therefore the Board concluded at pages 7 and 8 of its decision:
For the above reasons and after careful consideration of all the evidence adduced at the hearing, we are not satisfied that the evidence has established that the claimants have good grounds for fearing persecution [...]
[20] In the case at hand, the Board made credibility findings adverse to the applicant in very clear terms such as: "We find the claimant untrustworthy" (page 3 of the Board's decision). The basis for these findings are many. Given the deference to be conferred upon the Board by this Court, and that these credibility findings are set out with particulars and are not couched in vague or general terms, this Court is not entitled to interfere with these findings.
[21] The existence of documentary evidence that supports the applicant's story is insufficient to warrant judicial intervention with the Board's findings. The existence of such evidence does not demonstrate that the Board erred in law rather, it merely shows that the Board made a determination as to its weight, which it is entitled to do, as per the authority conferred upon it in Hassan v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 946 (F.C.A.).
[22] Finally, the Board drew a negative inference on the applicant's credibility because she was unable to provide documentation to account for the last nine (9) years disproving that she had allegedly resided in the north of Sri Lanka. There was also no reasonable explanation for this lack of documentation. In my view, this inference was reasonably drawn.
[23] There has been no error upon which to interfere with the Board's findings in this case.
O R D E R
THEREFORE, THIS COURT ORDERS THAT this application for judicial review be dismissed.
Neither counsel suggested a question for certification.
Pierre Blais
Judge
OTTAWA, ONTARIO
December 17, 2001